Hostile Work Environment

Sexual harassment is unwelcome conduct of a sexual nature, prohibited by Title VII of the Civil Rights Act of 1964, as it applies to employees, and Title IX of the Educational Amendments of 1972, as it applies to students. When harassing conduct is sufficiently severe or pervasive so as to impair the educational or employment benefits offered by educational institutions, it can be classified as hostile environment sexual harassment. A hostile environment may be created by sexually related pictures, jokes, e-mails, or other inappropriate behavior. Typically, a onetime occurrence of the conduct is not sufficient to create a hostile environment. Unlike quid pro quo harassment, a power relationship need not exist in order to create a hostile environment.

What the Law Requires

Hostile environment harassment can be created by males or females and perpetrated on individuals of the opposite or same sex (Oncale v. Sundowner Offshore Services, 1998). Males who engage in repeated instances of “flirting” behavior that is unwelcome may be creating a hostile work environment based on sex. Likewise, a male who is heckled by a female superior or colleague may allege hostile environment sexual harassment.

Unfortunately, there are no “bright line” rules regarding hostile environment sexual harassment. Yet members of a protected class, whether male or female, who allege sexual harassment typically must show, first, that they were subjected to unwelcome sexual advances or conduct; second, that they were harassed because of their sex and the harassment was sufficiently severe or pervasive to create an intimidating, hostile, or offensive workplace; and, third, that they were subjected to behavior so severe that a reasonable person would have found the behavior to be hostile or abusive.

For the purposes of hostile environment sexual harassment, “unwelcomeness” is an ill-defined concept. Even if individuals do not immediately complain of the conduct, this does not mean that the conduct was not unwelcome. Also, for a hostile environment to exist, the conduct must be pervasive, severe, or objectively offensive. The victim of hostile environment sexual harassment is often required to show more than a single incident of harassment in order to prove that it is pervasive. For example, trivial sexual flirtation of a few instances may not be sufficiently persistent to claim harassment. However, at least one court has ruled that a single slap on the buttocks was sufficiently pervasive so as to be considered harassment.

Factors relevant to hostile environment harassment include the degree to which the conduct affected an individual’s work or educational performance; the type, frequency, and duration of the conduct; the identity of and relationship between the alleged harasser and the subject or subjects of the harassment; the number of individuals involved; the age and sex of the alleged harasser and the subject or subjects of the harassment; the location of the incidents and context in which they occurred; and other incidents at the workplace or school.

When evaluating whether a reasonable person would consider behavior to be hostile or abusive, the Supreme Court in Harris v. Forklift Systems (1993) rejected the argument that employees must demonstrate that they were subjected to tangible injuries. The courts may look at the conduct to determine whether it is frequent or severe, it is physical (as opposed to insignificant offensive statements), or it materially interferes with the victim’s performance. Further, reasonableness may be examined in light of the evidence that a victim’s performance or grades suffered because of the harassment, as in Davis v. Monroe County Board of Education (1999), or if an employee felt compelled to quit work due to the harassment.

Enforcement and Liability

Under Title VII, private and public institutions with 15 or more employees may be liable for acts of supervisors and employees who sexually harass others. Title VII is enforced by the Equal Employment Opportunity Commission (EEOC). Title IX of the Education Amendments of 1972 is an educational statute that prohibits disparate treatment of individuals in educational institutions on the basis of sex.

Employee-to-employee sexual harassment is addressed by Title VII, while Title IX covers employee-to-student and student-to-student sexual harassment. Under Title IX, private and public institutions receiving federal funds may be liable for the sexual harassment of students or employees. Title IX is enforced by the Office for Civil Rights in the U.S. Department of Education. As opposed to their action in cases of quid pro quo sexual harassment, the courts are reluctant to impose strict liability on employers for the actions of their employees. However, when employers act with deliberate indifference to the plight of victims, the courts have rendered them liable for the actions of their employees.

School Board Actions

Prevention is the best tool to eliminate claims of sexual harassment. Still, school officials can take steps to reduce or prevent the occurrence of sexually harassing behavior by establishing sexual harassment policies. Employees should be notified and trained on the content and intent of the policies. Appropriately devised policies include a commitment to eradicate and prevent sexual harassment, a definition of hostile environment sexual harassment, an explanation of penalties for sexually harassing conduct, an outline of the grievance procedures, contact persons for consultation, and an expressed commitment to keep all complaints and personnel actions confidential.

Further, once school officials are made aware of sexually harassing behavior, it is incumbent upon them to act and not be deliberately indifferent to the plight of victims. Officials may be judged as being deliberately indifferent if they, or one who possesses the authority to address harassing behavior, have actual knowledge of the wrongdoing and consciously disregard the behavior.

Training is crucial to identifying signs of sexual harassment. First, training should occur on sexual harassment complaint procedures. Included in the training should be procedures on how and with whom to file a formal complaint and how to respond appropriately to formal complaints.

Second, since most problems of sexual harassment do not follow formal complaint processes, all employees should be trained to identify potentially harassing behaviors. Regarding employee behavior that might lead to harassment charges, some behavior is fairly obvious, such as making suggestive comments, giving personal gifts, and sending intimate letters or cards. Some behavior that is not as obvious includes flirting; lingering too long in a hug; engaging in playful exchanges; and leering, such as “elevator eyes,” staring at an individual with the eyes moving up and down the person’s body.

Office for Civil Rights, U.S. Department of Education. (2001). Revised sexual harassment guidance: Harassment of students by school employees, other students, or third parties. Available from http://www.ed.gov